As the COVID-19 pandemic nears its end and our country looks to reopen, we are once again faced with the horrifying reality of recurrent mass shootings.
The sad fact is that this violence is easily avoidable. No other high-income country comes close to the United States in deaths due to gun violence. In fact, when other countries experience these types of attacks—like the mosque attacks in New Zealand—they move swiftly to prevent any similar events from ever happening again.
Instead, the United States allows a partisan interest group to lie about our Constitution to create culture wars that distract large segments of the voting population from the issue at hand. The truth is, unless you are a member of the National Guard, you have no Second Amendment rights. That is, only members of the National Guard would have Second Amendment rights if not for rulings by conservative Supreme Court judges in recent decades.
In 1975, the District of Columbia passed an ordinance that effectively banned handgun ownership within the city’s limits. In 2002, six residents sued, and in 2008, the Supreme Court heard arguments on whether the District’s ordinance violated an individual’s right to own a firearm. The resulting decision struck down the District’s law and created an individual’s right to own guns.
Before the decision, there was no individual right to own firearms. The very words of the Second Amendment, “A well regulated militia, being necessary to the security of a free state,” makes absolutely no mention of an individual’s right to bear arms, and every other Supreme Court case only considered the right of militias to own firearms. The purpose of this amendment, as affirmed by historians, was to stop the federal government from getting rid of state militias. The Second Amendment only granted the right to own a firearm to those involved in local militia, which would now be the National Guard.
Since then, it has become challenging to pass any gun control regulation. Governments attempting to do so must show either that the behavior they are regulating does not fall under the Second Amendment—which is difficult given that the Second Amendment is often selectively interpreted—or that the regulations are not too burdensome under whatever test is appropriate—difficult for the same reason.
The biggest problem for regulators is that the Supreme Court has not stepped in to make clear what gun regulations are and are not allowed. The last major Second Amendment case was dismissed because the law in question was repealed, and before that, the previous major Second Amendment case created this right as it applies to state and local governments. This lack of clarity has resulted in some laws being constitutional in one part of the country while not being constitutional in other regions. For example, the Circuit Court for the District of Columbia has repeatedly struck down attempts to limit open carry of handguns without “good cause” in Washington D.C., while the 9th Circuit Court of Appeals just upheld a Hawaii law that did the same thing.
What is troubling is that if the Supreme Court steps in now, the 6-3 majority of conservative activists is likely to strike down almost any gun law and make ensuring public safety almost impossible. The latest addition to the court, Justice Amy Coney Barrett, dissented from an opinion that allowed the government to prevent felons from owning firearms. To be clear, Justice Barrett thinks that since the Founders did not explicitly bar felons from owning guns—they instead took all their possessions and put them to death—such restrictions are unconstitutional. It is doubtful that, for example, Massachusetts’ ban on “assault weapons and large capacity magazines” would find an ardent supporter in Justice Barrett or any of the other conservative activists.
What is the solution? We know that gun control works; at least it works for other high-income country. Are we to let the judges on the Supreme Court twist the wordings of the Constitution and allow these massacres to continue happening? I don’t think so.
We can do nothing about the Supreme Court’s current justices; they get to serve until they die or retire. What we can do is increase the number of justices. Expanding the Supreme Court and installing justices who respect the Constitution would enable the United States to pass gun control and prevent the next tragedy. While such a move is extreme, it is equally extreme to allow five or six philosopher-kings to hold our country hostage, or rather, allow those philosopher-kings to open the door for mass shooting after mass shooting. If the Supreme Court as currently constituted wants to shirk its duty to uphold the Constitution, the President and Congress must use their constitutional power to act as a check upon the Supreme Court and fix the issue.
Jeremy Brum can be reached at [email protected]
